* A shortened version of this article was presented at the legal history session of the annual conference of The Society of Law Teachers of Southern Africa and The Southern African Society of Legal Historians on 2011-01-18 in Stellenbosch. The attendance of that conference was made possible with the financial assistance of the University of South Africa. I thank Prof GJ van Niekerk and Prof MN Slabbert for their comments on and suggestions regarding earlier drafts of this article. 1http://www.azlyrics.com/lyrics/eagles/getoverit.html (2010-10-28). 2 The name "De Zuid-Afrikaansche Republiek was officially adopted by a resolution of the Volksraad on 1853-09-19 and confirmed by art 1 1858 Constitution - see respectively Eybers Select Constitutional Documents Illustrating South African History 1795-1910 (1918) 360 Doc no 179 and 363 ff Doc no 182. (The name was at some point amended by another Volksraad resolution dated 1853-11-21 and changed to "De Zuid-Afrikaansche Republiek Benoorden de Vaalrivief, but the original name was retained thereafter by the 1 858 Constitution.) The use of the name later became a political issue when, after the British annexation ended in 1881 (see n 54 infra, the British authorities disapproved of the use of that name in official documents (Irish University Press Series British Parliamentary Papers Colonies Africa [hereafter BPPCA] Transvaal Vol 37 (1971) No 13 at 62 and No 14 at 62). The then Attorney-General, EJP Jorissen, responded that the name "South African Republic" (the English translation) "is the old name of the country ... and regarded with affection by every burgher in the land" (BPPCA Transvaal Vol 37 (1971) No 31 at 101 Annexure 2 at 102-103). The British then pointed out that the Convention of Pretoria of 1881-08-03 (publ in Eybers 455-463 Doc no 200) referred to the "Transvaal Territory" and that the Transvaal and the South African Republic did not have the same boundaries (BPPCA Transvaal Vol 37 (1971) No 41 at 267). However, in the London Convention dated 1884-02-27 (publ in Eybers 469-474 Doc no 204), a subsequent treaty between Britain and the Transvaal State, Britain acquiesced and reverted to the use of the name "The South African Republic". For purposes of this article, to avoid confusion with the later province of Transvaal and the Republic of South Africa after 1961, the original name, namely Zuid-Afrikaansche Republiek (or its acronym ZAR will be used, also when referring to the period before the Volksraad resolution of 1853-09-19. 3 In a letter to his father dated 1878-04-07, H Rider Haggard mentioned that he had to deal with "a lot of gentlemen whose paths were the paths of self-seeking ..." (publ in Haggard The Days of my Life: An Autobiography (ed Longman) (1926) 114). 4 Haggard 108. 5 Haggard accused them of overcharging and of their clients being "mercilessly fleeced" (109). Hahlo & Kahn The Union of South Africa. The Development of its Laws and Constitution (1960) 231 n 70 further refers to Tromp Herinneringen uit Zuid-Afrika ten tijde der Annexatie van de Transvaal (1897) in this regard. However, it is submitted that this source is incorrectly cited there as Tromp merely stated that it was possible for the inhabitants of the Transvaal, in general, to become rich without much energy, knowledge or hard work (195) and that it was possible for attorneys in particular to earn a lot of money because of the litigiousness of the population (195-196). He was much more scathing towards members of the medical profession of that time, which he referred to as "kwakzalver(s)" with bills "die bijna ongeloofelijk zijn" (196). 6 Kotzé Biographical Memoirs and Reminiscences Vol 1 (date unknown, publ Maskew Miller, Cape Town) [hereafter Kotzé Vol 1] 540-541. Kotzé actually had a lot of praise for the local bar practising at the time of the creation of the high court in 1877. He mentioned that they "understood how to prepare their cases and conduct them with proper care and attention", and that "[s]ome of them displayed quite good ability as pleaders, for they were anxious to learn, and were in earnest in their work" (540). 7 Kotzé Vol 1 541. 8 Apart from the period when the ZAR was first annexed by Britain (18771881), this paper deals only with the administration of justice in the ZAR while not under British rule. The Anglo-Boer War commenced on 1899-10-11 and ended on 1902-05-31 with the signing of the Vrede van Vereeniging treaty. Thereafter the ZARbecame a British colony. 9 See also Koté "The administration of justice in the South African Republic (Transvaal)" 1919 SALJ129. 10 As publ in Eybers 349ffDoc no 174. 11 As publ in Eybers 357 Doc no 175; See also Kotzé 1919 SALJ 129. 12 The general provisions dealt with matters such as public order at the law sessions (arts 2, 3); obstruction of justice (arts 4, 5); the crimes of treason (arts 9, 10), perjury (art 17), assault (art 18 used the terminology "wie iemand stouten of slagen"), slander or defamation (arts 19, 27), murder, patricide, infanticide, poisoning (art 20), theft (art 21) and other property related crimes (art 22), refusal to go on commando when summoned (art 23), opening of another's letters (art 24), abduction of children (art 28); non-compliance with rules relating to building (art 26); the application of the Hollandsche wet(art 31); and the treatment of servants (art 33). For a general discussion on De Drie en Dertig Artikelen, see Kotzé Vol 1 436-437; Kahn "The history of the administration of justice in the South African Republic" 1958 SALJ 295-297; Scott "The administration of justice in the Transvaal 1836-1910" in Mellett, Scott & Van Warmelo Our Legal Heritage (1982) 91-92. 13 Art 16. The statute did, however, make provision (in art 6) for certain grounds that prevented a person from acting as a judge. These grounds made no mention of required qualifications, but dealt mostly with possible factors that could influence the impartiality of the judge. The terminology used in this provision referred to a "judge" (regter) despite the fact that the law sessions of that time were presided over by a landdrost. For a discussion of the duties of landdrostsbefore the 1858 Constitution, see Van der Westhuizen & Van der Merwe "Die geskiedenis van die regspleging in Transvaal (1835-1852)" 1976 De Jure265. 14 As publ in Eybers 363 ff Doc no 182. For a general discussion of the provisions of the 1858 Constitution, see Kahn 1958 SALJ 302-306; Van der Westhuizen & Van der Merwe 1977 De Jure 95-96. 15 Arts 15, 127-1 70. See also Kotzé Vol 1 436-437. 16 Art 143. In Bijlage 3to the 1858 Constitution (see n 21 infra) the highest court was referred to as the "Hoog Geregtshof". The terms used to refer to the high court differed in the various official documentation and legislation. For purposes of this article, the term refered to in the document under discussion will be used. Furthermore, art 3 of Bijlage 3 made provision for the election of a chairman of the Hoog Geregtshofby the landdrostenfrom among themselves (3 landdrosts had to preside at each sitting - see art 143 of the 1858 Constitution), and art 4 stipulated that the clerk of the landdrost of the place where the Hoog Geregtshofsat, would act as griffier.17 Art 144. At each sitting, the order in which cases were heard, were determined as follows: criminal cases of first instance, appeals in criminal cases, and only then were appeals in civil cases heard (arts 1, 35 and 42 of Bijlage 3to the 1858 Constitution). 18 Art 143. A person wanting to be appointed as a clerk had to meet certain requirements: he had to be an enfranchised citizen, have not had any dishonouring sentences passed against him and be over 21 years of age (art 134). Furthermore, both clerks and messengers had to take an oath of office (arts 141 and 142 respectively). 19 Art 184. 20 The Constitution did, however, set minimum requirements for other judicial officers: landdrostshad to be enfranchised citizens for at least two years, as well as members of the Dutch Reformed Congregation, not have had any dishonouring sentence passed against them, be thirty years or older and own immovable property within the Republic (art 128); heemraden had to meet the same requirements as those for landdrostswith the exception of having to own immovable property within the Republic (art 129); jurors were expected to be enfranchised citizens, have had no dishonouring sentences passed against them and be thirty years or older (art 131). Veldcornetten were also appointed (arts 127, 145) and their duties were set out in a separate document, entitled Instructie voor de Veldcornetten promulgated on 1849-04-09 and approved by resolution of the Volksraadon 1858-09-17 (publ in Eybers 410ff Doc no 183). An oath of office had to be taken by landdrostsand heemraden (art 139 of the 1858 Constitution), jurors (art 140 of the 1858 Constitution) and veldcornetten (art 62 of the Instructie voor de Veldcornetten). See also n 18 supra regarding the oaths of clerks and messengers of the courts. 21 Approved by the Volksraadon 1859-09-20. 22 Art 50 Bijlage 3. Non-compliance was punishable with a fine of 100 rijksdaalders. 23 Art 51 Bijlage 3.24 Art 53 Bijlage 3. The acte was then signed by the President and the Secretary of the Executive Council as well as by the State Attorney. The applicant had to pay a fee of 100 rijksdaalders for the issuing of the acte. This means that at that time, the admission of attorneys (procureurs were dealt with by the executive, and not by the judiciary. 25 Art 52 Bijlage 3.26 Decision of the Volksraad of 1876-06-14 (art 219). Non-compliance was severely punished with a fine of £7 10s for each separate offence. 27Idem (art 220). The wording erroneously referred to membership of the "Ned. Hervormde" church. 28 James Buchanan has been described as "a lawyer of ability" (Kotzé 1919 SALJ133); as possessing "exceptional diligence and [a] brilliant intellect", as "a conscientious jurist and an outstanding lawyer" (Moll sv "Buchanan James" in Dictionary of South African Biography [hereafter DSAB] Vol II (2nd impr 1983) 95-96); and as a "sound lawyer and an eloquent speaker" (Kotzé Vol 1 275). He was born in Cape Town on 1841-09-21 and his law career commenced on 1865-02-01 when he set up practice as an advocate at the Cape Bar. He participated in the western circuit of the Cape circuit court until 1871. On 1872-12-09 he became Attorney-General of the ZAR, where he remained until 1875. During this brief period, he implemented changes to the administration of justice, one example being Law 1 of 1874, despite having only one clerk and no permanent office space. He also played a role in the establishment of the first police force in the ZAR and drafted legislation relating to insolvency matters, the latter which was never accepted by the Volksraaddue to certain conservative elements (Kotzé 1919 SALJ 133). From 1876 to 1880 Buchanan was a puisne judge with the Supreme Court in the Orange Free State, whereafter he left for Kimberley where he was appointed as the recorder, and in Sep 1882 judge president, of the Supreme Court of Griqualand West, where he remained until his retirement in Sep 1887. During his law career, he was also the editor of the Menzies Reports, containing cases decided by the Supreme Court of the Cape of Good Hope, and authored Precedents in Pleading: Being Forms Filed of Record in the Supreme Court of the Colony of the Cape of Good Hope (1878) as well as a work on Decisions in Insolvency (1879). (It is interesting to note that in both the Menzies Reports as well as Precedents in Pleading he is mentioned as James L Buchanan, although Moll sv "Buchanan, James" in DSABVol II (2nd impr 1983) 95 refers to him merely as James Buchanan.) He furthermore translated several volumes of Johannes Voet's Commentarius ad Pandectas. In addition to his law career, he was actively involved in politics, journalism and cultural matters. For more detail on the life of James Buchanan, see Moll sv "Buchanan, James" in DSAB Vol II (2nd impr 1983) 95-96; Kotzé Vol 1 275-276, with a portrait of James Buchanan opposite. 29 See the preamble to the Law. For example, regarding civil cases, the Law contained prescribed forms for dagvaarding (art 10 (civiele zaken) and art 6 (crimineele zaken)), subpoena op getuige (art 18 (civiele zaken) and art 7 (crimineele zaken)), acte van securiteit (arts 35, 47), lastbrief ter executie (art 43), kennisgeving van beslag (art 46), the certificate in appeals (art 52) and the lastbrief for arrest (art 16 (crimineele zaken)). (Unless otherwise specified, all references to arts in this Law refer only to provisions dealing with civil cases.) 30 Art 5 contained the prescribed oath of office to be taken by the griffier.31 Persons applying for admission as an attorney or advocate in the high court, had to pay stamp duty in the amount of £30 (s 7 of Law 2 of 1871). Once admitted, a practitioner had to obtain a licence, renewable annually at a cost of £15 (s 5 of Law 2 of 1871). In 1882 this rule was amended by a decision of the Volksraaddated 1882-06-27 (despite an extensive search, I was not able to obtain a copy of this decision): henceforth licences could be obtained for periods of a year (for £25), six months (for £18 15s) or three months (for £10 10s). 32 Art 1 (civiele zaken) read as follows: "Niemand zal geregtigd zijn als procureur of agent voor eene partij optredende, eenige betaling te eischen als zoodanig volgens tarief, dan dezulken, die behoorlijk geadmitteerd zullen zijn, hetzij als procureurs voor de Hoogere Geregtshoven of als agenten voor de mindere." (The reference to the claim for payment according to tariff was omitted by an amended provision (art 216) accepted by a resolution of the Volksraad dated 1876-06-14.) It seems this prohibition applied only to legal representation in civil cases as there was no corresponding article in the section dealing with procedures in criminal cases. This further correlates with Law 2 of 1871 in terms of which tariffs charged by attorneys and law agents were regulated only with regard to civil matters; the costs in criminal matters could be determined by agreement between the attorney or law agent and his client (see n 113 infra). Regarding law agents, see n 76 infra.33 Art 1. The stamp duty payable at admission was £12 (s 7 of Law 2 of 1871). Licences expired on 31 Dec and had to be renewed annually at a cost of £10 (s 5 of Law 2 of 1871). 34 See par 2 3 infra.35 Art 2. This article also specified the procedure to be followed before the granting of a licence. 36 Britain annexed the ZARby a proclamation issued on 1877-04-12: as publ in Eybers 448ff Doc no 198. See also the Gazette Extraordinary(ZAR) of 187704-12. 37De Volksstem (1 877-05-23) "The High Court - Official changes". However, a few weeks later, the same newspaper was quick to point out some of the shortcomings of the proclamation (see De Volksstem (1877-06-06) "Het Hoog Geregtshof" and (1877-06-13) "Andermaal het Hooge Hof"). 38 Art 1 of the Proc (see n 36 supra).39 Art 2. JG Kotzé was appointed as the first judge of the high court of the ZAR in 1877 by Sir Theophilus Shepstone. In 1881 he was appointed as Chief Justice and served in that capacity until his dismissal by Pres Kruger on 1898-02-16 as a consequence of the constitutional crisis. Much has been written about the constitutional crisis, but due to space constraints, this will not be discussed here. For more on this topic, see Kew John Gilbert Kotzé and the Chief Justiceship of the Transvaal, 1877-1881 (MA dissertation 1979 UNISA) passim; Hahlo & Kahn 107-110; Paul Kruger and the Transvaal Judiciary Vigilance Papers 3 (1900) passim.40 Art 8. 41 Art 3. 42 Arts 4 and 5. Art 4 excluded jurisdiction in disputes between inboorlingen, while art 5 determined jurisdiction in all appeals and reviews from the lower courts. 43 Art 9. 44 Art 10. 45 In the Cape, admission to the legal profession at that time was regulated by Act 12 of 1858 (Cape). Advocates had to obtain a certificate of merit, as well as a certificate of the higher class in law and jurisprudence (s 2 Act 12 of 1858). From 1873 it was also possible to gain admission by acquiring a Bachelor of Law degree from the newly established University at the Cape of Good Hope (s 20 Act 16 of 1873 (Cape)). For a critical analysis of the quality of the training involved for this degree, see Pont "Die opleiding van die juris in Suid-Afrika" 1961 Acta Juridica 68-70, 73-75. 46 "[E]n die niet afgewezen of op eene andere wijze onbevoegd zijn geworden47 For more on the history of the Society, see Robinson, Fergus & Gordon European Legal History Sources and Institutions(1994) 240; Society of Writers to H.M. Signet (Great Britain) A History of the Society of Writers to Her Majesty's Signet: With a List of the Members of the Society from 1595 to 1890 and an Abstract of the Minutes(1890) ix-lxv [hereafter referred to as Society of Writers]; as well as the official website of The Society of Writers to Her Majesty's Signet available at http://www.thewssociety.co.uk/index.asp?tm=14 (accessed 2010-11-24). This Society developed by association with the King's Secretary through their duty of drafting official documents and applying thereupon the royal private seal (Signet) of the early Scottish Kings. The clerks of the Secretary's office became known as "writares to the signet" (Society of Writers xvii). Although the first use of the Signet was recorded in 1369, the Society was officially established only in 1594. In addition to their work in the Secretary's office, they also acted as clerks of court and were closely linked to the College of Justice (idem xvii-xviii). To become a member of the Society, a person had to have some knowledge of business matters, the law and conveyancing, Latin as well as "a mastery of the art of penmanship" (idem xvii). An apprenticeship and passing an examination were also requirements (idem xlvi, xxv). 48 Attorneys had to obtain a certificate of merit and serve articles for three consecutive years (s 3 of Act 12 of 1858 (Cape)). 49 The admission of notaries in the Cape was regulated by ss 4 and 5 Act 12 of 1858 (Cape). 50 "... en die niet geschorst of op andere wijze onbevoegd zijn geworden."51 Art 9. 52Ibid. Regarding the admission to the legal profession in the Cape, see nn 45, 48 and 49 supra.53 Art 11. 54 In terms of The Convention of Pretoria, dated 1881-08-03 (publ in Eybers 455-463 Doc no 200), Britain granted the Transvaal "complete self-government, subject to the suzerainty of Her Majesty" and certain reservations and limitations. Proc 1881-08-08 (as publ in Eybers 463-464 Doc no 201; also publ in Jeppe (ed) De Locale Wetten der Zuid Afrikaansche Republiek 1849-1885 (rev Kotzé 1887) 1010) mentioned 1881-08-08 as the date that independence was regained. 55 Art 6 Proc of 1881-08-09 Staats-Courantder ZA Republiek of 1881-08-18 (publ in Jeppe 1011-1013). This proclamation was ratified, confirmed and added to by s 1 Act 3 of 1883 which dealt with the administration of justice and the proper composition of the hoog geregtshofand the circuit courts. 56 Art 7 Proc of 1881-08-09. 57 In 1902 the secretary of the Incorporated Society of Law Agents in Scotland, JW Barty, complained to the Undersecretary of State for Colonies regarding the inconvenience caused by the related formalities in this regard. Law agents admitted in Scotland, and who had not signed the roll of the Supreme Court in Scotland, were required to return to Edinburgh in person to pay stamp duty of £30 and sign the roll: see TAB [refers to the Pretoria Archives Repository] GOV Vol 22 GEN 614/02 3-4, letter dated 1902-07-26 enclosed in despatch from J Chamberlain to Milner, 1902-08-12. 58 S 11 Proc 14 of 1892. 59 Proc of 1887-08-29 Staats Courant der ZAR of 1887-09-14 Bijvoegsel [hereafter referred to as the High Court Rules 1887]. 60 S 75 High Court Rules 1887. The articles could be served with a practising attorney, notary or conveyancer. Alternatively, the person could have served as clerk to the State Attorney or one of the judges of the high court, or as the registrar or assistant-registrar. 61 S 75 High Court Rules 1887. 62 Rules and Regulations (1899) of the High Court of the South African Republic (hereinafter referred to as the High Court Rules 1899)(publ in Barber, Macfayden & Findlay The Statute Law of the Transvaal (1901) 11181154). Regulations for the lower courts were promulgated as Law 11 of 1892. S 9 Law 11 of 1 892 stipulated that an advocate was allowed to appear in the lower courts only when instructed to that effect by an admitted attorney or law agent. S 101 also provided that a law agent was not allowed to appear in the lower courts without a certificate proving he had passed the necessary examinations. 63 For more on the board of examiners, see par 2 3 infra.64 S 102 High Court Rules 1899. 65 S 103(b) High Court Rules 1899. A notary could only serve articles with a practising attorney. A person already admitted as an attorney only had to serve articles of one year before applying for admission as a notary. 66 Although the provision did not explicitly state which certificate, it most probably referred to a certificate of the second class in law. 67 S 103(a) High Court Rules 1899. The articles could be served as a clerk or pupil with a practicing attorney (in which case the contract had to be registered at the high court and with the Law Society), or as a clerk of the State Attorney, or as a clerk to a judge of the high court, or as registrar or assistant registrar, or as taxing officer. 68 S 103(c) High Court Rules 1899. 69 S 103(d) High Court Rules 1899. 70Ibid.71 S 107 High Court Rules 1899. 72 See ss 102, 103(a), (b) & (c) High Court Rules 1899. Although this discrepancy is interesting, it was probably merely an oversight of the Legislature, especially since advocates were allowed to be admitted as attorneys (s 104 of the 1899 Rules). Furthermore, there were no known female advocates at that time. The first challenge to the all male-rule was the case of Schlesing v Incorporated Law Society1909 TS 363, in which the female applicant applied for admission as an attorney (and not an advocate). From the comments by the court in its judgement, it is clear that at that time, ten years after the promulgation of the 1899 High Court Rules, the ZARlegal fraternity still viewed the profession as exclusive to males. It is therefore unthinkable that the High Court Rules 1899 could have intended toopen the advocacy profession to females. Women were only allowed to be admitted as legal practitioners from 1923 (Act 7 of 1923). Regarding gender stereotyping by the courts in this regard, see Wildenboer "Through rose coloured glasses: gender stereotyping in the South African courts" 2008 1 Speculum Juris 32-35. 73 S 110a High Court Rules 1899 only mentioned law agents regarding the exceptional circumstances in which an attorney could share his fees for work done in the high court with a person who was not a qualified and practising attorney. 74 Kotzé 1919 SALJ 134. For a legal historical overview of the divided legal profession, alternatively dual practice, in South Africa, see Wildenboer "The origins of the division of the legal profession in South Africa: A brief overview" 2010 2 Fundamina199-225. 75 See nn 32 and 33 supra.76 Law agents were only permitted to appear in the lower courts and had no locus standi in the high court: Kotzé 1919 SALJ 134. After 1877 they had to pass an examination known as a third class certificate in law: see Kotzé 1919 SALJ138; see also nn 33-35 supra, as well as n 91 infra.77 Kotzé Vol 1 422-424; Ex parte Auret ( 1888) 2 SAR 228 where Kotzé CJ stated that "it is undesirable that a practitioner should constantly be changing from an advocate to an attorney and vice versa" (229). He then continued by instituting a new rule which required a minimum of two terms lapsing between having one's name removed from one roll and applying to be admitted on the other roll (ibid). See also Van der Westhuizen & Van der Merwe 1977 De Jure245. 78 In separate, albeit similar letters dated Jan 1 878, two members of the legal profession addressed the government on the subject of separating the office of attorney from that of advocate. SJ Meintjes, signing his letter "Attorney" (TAB SS Vol 262 R220/78, letter to the Government Secretary Transvaal dated 1878-01-22) and JC Preller, signing his letter "Adv. Atty" (TAB SS Vol 263 R237/78: although the letter is undated, a pencil inscription on the original document stated that it was "Recv Jan 23". Interestingly, these letters show an almost word-for-word similarity which gives me reason to believe that both letters were written and delivered, if not on the same date, then within a few days of each other.) refer to the last session of the high court where the judge (Kotzé) indicated that he was drafting new rules of court in this regard. They then pointed out, first, that the judge himself had said, in the case of O'Leary v White, that the dual practice system "worked well" in Natal because it was "less expensive to the community" and, secondly, that their privilege to practise as both attorney and advocate, was guaranteed in terms of the Annexation Proclamation and confirmed by a certificate from the high court when readmitted to practise as such. They did, however, acknowledge that at a later stage (30 to 35 years from then) it might be "advisable" to reconsider the dual practice system. 79De Volksstem (1 878-01-01) "Regterlijk". 80 Art 9, 10 Proc of 1877-05-18 publ in Jeppe 703-707. See also Van der Westhuizen & Van der Merwe 1977 De Jure 245. 81 S 75 Proc Staatscourant ZAR of 1884-02-21 [hereafter referred to as the High Court Rules 1884]. This provision was repeated in subsequent amendments: see s 75 High Court Rules 1887; s 104 High Court Rules 1899. 82 S 104 High Court Rules 1899. 83 The official name of the board was the "Board of Examiners in Law and Jurisprudence" (see s 1 Rules published as GN 76/1878 Transvaal GG of 1878-06-04). However, for purposes of this article, it will merely be referred to as the "board of examiners". 84 Nicolaas Jacob Reinier Swart was a theologian before accepting the position of government secretary of the ZAR on 1871-11-08. He also acted as State Attorney from Oct 1875 to Jun 1876. For more on the life and career of Swart, see Spoelstra sv"Swart, Nicolaas, Jacob Reinier" in DSAB Vol I (1968) 817-818. Interestingly, Swart himself was of the view that advocates should not be examined in the ZAR, but rather receive their training at a university (see the inter office note made by Swart on a letter from Kotzé to Swart in his capacity as Acting Secretary to Government dated 1877-08-01 - TAB SS Vol 242 R2835/77 24). 85 Kotzé Vol 1 528; Kew 87. 86 Van der Westhuizen & Van der Merwe 1977 De Jure 259 notes that Jorissen had privately studied the works of Van Leeuwen, Van der Linden and Grotius before passing the required examination on 1876-05-31 (see also Kotzé Vol 1 528). See also Jorissen Transvaalse Herinneringen 1876-1896 (1897) 8 for his personal memories of that examination. See also Kotzé Memoirs and Reminiscences Vol 2 (1949) (hereinafter Kotzé Vol 2) 114-115 who described the examination in the local statute law as "an easy matter" and mentioned that the examination itself was conducted in Dutch to test the language abilities of the candidates. 87 TAB SS Vol 242 R2835/77 24-27, letter by JG Kotzé to the Acting Secretary to Government dated 1877-08-01. This letter contained preliminary regulations drafted by Kotzé which addressed issues such as the composition of the board, the regularity of examinations, the three classes of certificates and the contents to be prescribed as study material for each certificate. See also Kew 87 n 49. 88 At that time, Kotzé himself. 89 At that time, EJP Jorissen. Ironically, Jorissen also had no legal qualifications (Kotzé Vol 1 526-528; see also n 86 supra. For a discussion of Kotzé's role in exposing Jorrisen's lack of insight into legal matters, as well as other factors contributing to the subsequent dismissal of Jorissen, see Kew 79-83). Jorissen had received training as a theologian in the Netherlands and was appointed as State Attorney on 1876-07-09 at the behest of Pres Burgers (Jorissen 7-10; Ploeger sv "Jorissen, Eduard Johan Pieter" in DSAB Vol II (1972) 353). On 1878-10-01 he was succeeded by CG Maasdorp (Kew 83), after which Jorissen remained in practice as a dual capacity lawyer (Kotzé Vol 1 537). According to Kotzé, Jorissen's lack of legal training did not prevent him from earning £600 annually as Attorney-General of the ZAR before the British annexation (Kotzé Vol 1 415). However, in 1883 when the salary was raised to £1000 per year, it was also stipulated that the State Attorney had to have the required qualifications (VRR 1883-07-04, publ in Jeppe 1216). Jorissen, despite his protests, subsequently lost his position (Kahn "The history of the administration of justice in the South African Republic" 1958 SALJ 407; Jorissen 129-130. For a description of the duties of the Attorney-General at that time, see Scott in Mellett, Scott & Van Warmelo 97). In 1890, however, he was appointed as judge of the high court (Ploeger 355). 90 HWA Cooper and SJ Meintjes were the first to be appointed (GN 79/1878 Transvaal GG of 1878-06-18; Kew 88 n 51). Both these appointments were made on the recommendation of Kotzé with the purpose of involving, and thereby acquiring the cooperation of, the existing profession (Kew 88. See also TAB SS Vol 285 R1926/78 128-129 for Kotzé's letter to Osborne dated 1878-06-10 where he writes: "Again altogether to pass over the old boys will not do..." and that an appointment should "show the old practitioners that they are not forgotten"). Interestingly, Meintjes had been a member of the board of examiners a few years earlier as well and had resigned from that position on 1869-08-21 (TAB SS Vol 112 R763/69 85). The reason given for his resignation concerned Meintjes' confession of inadequacy in performing his duties. However, despite his own reservations, he was later reappointed since his name appears again in that capacity in an official notice dated 1871-12-16 (TAB SS Vol 112 R326/71 257). Also interesting is the fact that Meintjes himself had no formal legal training. He settled in Pretoria after a reward of £50 was offered by the Cape government in June 1864 for his capture. He had previously left Graaff-Reinet under a cloud when some businesses suffered bankruptcy, allegedly as a result of his actions. However, since he had been declared insolvent earlier in 1858, his creditors never succeeded in recouping their losses from him. For more information on SJ Meintjes' life, see Thornhill sv "Meintjes, Stephanus Jacobus" in DSAB Vol III (1977) 594-595. 91 GN 76/1878 Transvaal GG of 1878-06-04 and 1878-06-11. Agents were examined on the local laws and on Van der Linden's Laws of Holland. Attorneys, notaries and conveyancers were examined on the same, as well as Roman law, English law and notarial practice. Advocates were examined on jurisprudence (Austin and Maine), Roman law (the Institutes, as well as parts of the Digest), the local laws, Van der Linden, Grotius, Van der Keessel, and English law (law of contracts, torts, evidence, criminal law, equity). Amended syllabi were published in 1887 (GN 229 Transvaal GGof 1887-09-07 Bijvoegsel [hereafter referred to as the Examination rules 1887]. Although some amendments had been made, the basic structure of the syllabi remained the same. In terms of the Examination Rules 1887, advocates were now additionally expected to have knowledge of the works of Voet and Van Leeuwen, and to have studied Dutch criminal law. Likewise, attorneys, notaries and conveyancers were expected to study Grotius, Van Leeuwen, Van der Keessel, Pothier and the rules of the high and lower courts. 92 See also Proc of 1895-05-31 (publ in Barber, Macfadyen & Findlay 722-723). 93 See also Kew 87. 94 Report by the Commissie van Examinatoren in de Rechtsgeleerdheid to the Government Secretary dated 1858-04-02 (TAB SS Vol 1051 R1678/85 208); see also the notice of such an examination: TAB SS Vol 11 84 R1018/86 117. S 2 Law 16 of 1896 provided that examinations in law and jurisprudence would be held on the first Tuesday in the months of April and October. Examinations were taken between 09h00 and 12h00, and between 14h00 and 1 7h00 (s 6 Supplement to Law 6 of 1895, publ in Barber, Macfadyen & Findlay 599-603). 95 TAB SS Vol 1051 R1678/85 208. From the same document it appears that a candidate only passed the examination if he obtained a minimum of 300 points or more in each section of the examination. It is unclear whether this points system was used before the changes made in 1878. However, in two separate earlier documents of the board of examiners, no mention was made of points earned by the successful candidates, nor of the subjects covered in the examination. In each document it was merely stated that the candidate concerned had sufficient knowledge to practise as an attorney (the candidate in question was William Emil Hollard: TAB SS Vol 132 R326/ 71 257 - for more on Hollard, see the text to n 127ff) or had completed "een voldoend examen" (the candidate in question was GA Roth: TAB SS Vol 211 R1797/76 301). 96 TAB SS Vol 1051 R1678/85 210. A possible relation, Albert Reinhold Fleischack, passed the examination as a conveyancer a year later. However, the report of the examination board did not state the points earned by this candidate (TAB SS Vol 1197 R1553/86 148). 97 See n 91 supra.98 S 11 Examination rules 1887. Candidates of the third-class examination first had to have obtained a third-class teacher's certificate, alternatively have passed satisfactorily in certain subjects. Likewise, candidates of the second-class examination first had to have obtained a first-class teacher's certificate, alternatively have passed satisfactorily in certain subjects. Candidates of the first-class examination first had to have passed an examination on literature and science, which included study of languages (Dutch, English, Latin as well as a choice between Greek, French or German), history, accounting, mathematics and chemistry. With the exception of a few minor changes, these requirements remained mostly the same with the promulgation of new provisions in 1895: see s 14 Supplement to Law 6 of 1895 (publ in Barber, Macfadyen & Findlay 599-603) [hereafter referred to as the Examination rules 1 895]. 99 S 13 Examination rules 1887. This was reiterated by s 16 Examination rules 1895. In Ex parte A Morice(1895) 5 Off Rep 264 an applicant who had been admitted as a solicitor by the Supreme Court of England and who had passed the separate examinations for attorneys and conveyancers, and had later been admitted as an attorney in the ZAR, received permission from the court to take the entrance examination for notaries. 100 S 3 Examination rules 1887; s 3 Examination rules 1895. 101 The fees varied between £8 and £15 per examination (s 7 Examination rules 1887 and s 9 Examination rules 1895). 102 Law 6 of 1895. 103 S 8 Law 6 of 1895. 104 The various syllabi remained mostly unchanged. One change concerned the first-class examination which thenceforth consisted of two separate parts which had to be taken at least one year apart. 105 The required subject knowledge was the same as for the third-class examination, with additional knowledge of conveyancing practice. 106 S 7 Examination rules 1895. The corresponding provision (s 6) in the Examination rules 1887 merely mentioned the possible removal of the candidate's name from the examination list. 107 The request, however, dated back five years to 1866 and was addressed to the President and the Executive Council (Kahn "The history of the administration of justice in the South African Republic" 1958 SALJ 308). 108 See Van der Westhuizen & Van der Merwe 1977 De Jure 256 who mention, after such a request by the landdrost of Potchefstroom, a Volksraadsbesluit of 1839 fixing costs regarding landdrost en heemraden. However, this was 'n decision by the Natal Volksraad, and can therefore, strictly speaking, not be classified as ZAR legislation. 109 S 13 Law 2 of 1871. In terms of a decision of the Volksraadon 1873-06-11, the reference to practice in the high court was thenceforth omitted (see Jeppe 437 n 2). As a consequence, attorneys could then charge the same fees for work done in the high and lower courts. 110 S 14 Law 2 of 1871. S 15 provided for fees due regarding debt collection and operated on a sliding scale. 111 S 16 Law 2 of 1871. 112 S 7 Law 2 of 1871. The fees related to, among others, transactions regarding the transport of immovable property, the execution of estates as well as ante nuptial agreements. All fees were payable as stamp duty. 113 Ss 13 & 14 Law 2 of 1871. See also the resolution of the Volksraadof 187006-21 (Art 211) (publ in Barber, Macfadyen & Findlay 90) which stipulated that unless ordered otherwise by a court, costs in criminal cases had to be borne by Government. 114 S 16 Law 2 of 1871. The taxation was done by the landdrost of the region in which the notary resided. 115 TAB SS Vol 249 R3698/77 37. See also Haggard 109-110 who cited one of the reasons for the implementation of stamp duty as the large percentage of fees on taxed bills of costs payable to the Treasury which was still unpaid. 116 Publ in Jeppe 1200-1209. 117 Eg, whereas in terms of Law 2 of 1871 an attorney could charge anything between 3s and 5s per letter, the same attorney could now charge 5s for the first page of every letter of demand (or other letters) and an additional 2s 6d for every following page. Act 8 of 1883 also required a minimum amount of words (75) per folio (see s 1 Bijgaande regels voor het tarief voor procureurs of Act 8 of 1883, publ in Jeppe 1201-1202). 118 S 2 Bijgaande regels voor het tarief voor procureurs of Act 8 of 1883, publ in Jeppe 1201-1202. 119 Eg, an advocate was entitled to charge £1 Is for each unopposed application, and £2 2s for each opposed application. Interestingly, Kotzé remembered that, during his time at the Cape Bar less than ten years earlier, junior counsel was allowed to charge five guineas when briefed for a trial (Kotzé Vol 1 175). It is not clear whether this fee was all inclusive or whether it was merely the allowed daily fee. He further mentioned that he earned less than £100 during his first year of practice and £160 during his second and that he had to do some freelance writing for the press to supplement his income (ibid). It is noticeable that the income he received as a freelance writer (£100 - £120 annually) was almost worth double what he then earned at the Bar. 120 S 86 High Court Rules 1887. 121 S 1 Law 12 of 1899. However, the taxing of all bills of costs for lawsuits in the lower courts had already been compulsory since 1892 (s 51 Law 11 of 1892). It appears as if this provision was not always followed as closely as it should have been, because by 1899 the legislator felt it necessary to add a penal clause: S 13 Law 12 of 1899 provided that an attorney or agent, practising in the lower courts, who received payment for a bill of costs without having it taxed, were to be suspended from practice or struck from the roll. 122 S 4 Law 12 of 1899. 123 In a bill of costs between party and party (s 7 Law 12 of 1899). 124 S 8 Law 12 of 1899. 125 In a letter to the Colonial Secretary dated 1877-12-05: TAB SS Vol 258 R4625/77 170-171. 126 Haggard 109. According to Haggard, the lawyers then appealed against his decision, but was only granted very little in addition to the amount allowed by himself. 127 "In those days the Boers were extraordinarily litigious; it was not infrequent for them to spend hundreds or even thousands of pounds over the question of the ownership of a piece of land that was worth little" (Haggard 109). ContraJuta Reminiscences of the Western Circuit(undated, Cape Town) 86: "It is sometimes said that the farmers of certain districts are a litigious class, but there does not seem to be any good ground for this statement." And at 88: "Though not litigious they are extremely tenacious of what they consider to be their rights." Juta then tried to illustrate this point with an example. He told of a certain farmer who had instituted legal action in the hope of regaining a mule worth £25 that he had previously bought for his son; in the end his legal costs were more than £300 (88-91). Arguably however, this example serves to illustrate precisely what Juta attempts to refute. 128 For more on Hollard, see Van Warmelo sv"Hollard, William Emil" in DSAB Vol IV (1981) 241-242; Roberts "The Bar in Pretoria" in Pretoria (1855-1955) (ed Engelbrecht)(1955) 173-194; Scott " Weatherley v Weatherley: dramatis personae" 1979 1 Codicillus13. 129 On 1870-04-06: GN 305 in Staats Courant der Zuid-Afrikaansche Republiek of 1870-04-12. On the same date he was also appointed as translator: GN 303 in Staats Courant der Zuid-Afrikaansche Republiekof 1870-04-12. 130 On 1877-07-20. The official documentation of the board of examiners stating that he had passed his attorneys' examination is dated 1871-03-16 (TAB SS Vol 132 R326/71 257). The document was signed by SJ Meintjes, JC Preller and M Clevens, who were most probably his examiners. 131 Roberts 180-182. 132Idem 186 n 37. 133 On 1876-09-19: GN 272 in Staatscourant Zuid-Afrikaansche Republiek of 1876-09-20. 134 GN 271 in Staatscourant Zuid-Afrikaansche Republiek of 1876-09-20. 135 Haggard 108. 136 1879 (2) Kotzé 66. 137 Vlok "Glimpses of life in early Pretoria" in Pretoria (1855-1955) (ed Engelbrecht)(1955) 40; Kotzé Vol 1 513; Scott 1979 1 Codicillus17. Duels had been declared illegal in terms of a GN of 23 Jul 1863 (publ in Jeppe 147), but this did not prevent Hollard from accepting the challenge (Kotzé Vol 1 513). 138 Roberts 187 n 40; Van Warmelo sv "Hollard, William Emil" in DSAB Vol IV (1981) 242. Kahn describes Hollard as one of the "weaker brethren of the 'old guard'" (Kahn "The history of the administration of justice in the South Africa Republic" 1959 SALJ46). 139 Roberts 190. 140 Roodt-Coetzee "Die Republikeinse Pretoria: kultureel en sosiaal" in Pretoria (1855-1955) (ed Engelbrecht)(1955) 140-141. 141 There seems to be some confusion as to the spelling of Munnich's surname. The spelling used by scholars and in official documentation vary between "Munnich", "Munnick" and "Munnik". However, Munnich himself used the spelling of "Munnich" (see his letter to the Chairman and members of the Volksraad dated 1866-08-15 publ in Breytenbach Suid-Afrikaanse Argiefstukke: Notule van die Volksraad van die Suid-Afrikaanse Republiek 1866-1867'Transvaal Part 6 (1956) (hereafter Breytenbach SA Argiefstukke Annex 31 at 114). This will therefore be the spelling used for purposes of this article. 142 In a letter to the President and members of the Executive Council dated 1866-07-10, it was requested that Munnich immediately be suspended for the reason "dat hij volgens 's lands wetten zijn plicht niet betracht". The writers of the letter feared divine justice in that "de vloek der Voorzienigheid op land en volk" might affect everybody if Munnich was permitted to stay on in his position (TAB SS Vol 78 R679/66 146). 143 Notice of the State Secretary dated 1866-10-22 publ in Breytenbach SA Argiefstukke Annex 55 155-156. 144 Kotzé Vol 1 417. 145 Roberts 180. Munnich was not able to take up the judgeship because of the British annexation that followed shortly after. 146 For more about De Korte's life and career, see Van Warmelo sv "De Korte, Benedictus" in DSAB Vol IV (1981) 118-119. 147 His letter of resignation to Kotzé CJ is dated 1896-06-28 (TAB SS Vol 5425 R6146/96 133-134). Contra Van der Merwe "Skuld en skandaal in die hooggeregshof van die ZAR" 1979 De Jure251 who dates the letter to two days earlier, namely 1896-06-26. 148 According to the charge-sheet, De Korte was officially charged with misconduct ("wangedrag") based on three grounds. The first ground concerned De Korte's acquisition of 100 shares of the company Eckstein & Co far below its market value; the second ground concerned two bills of exchange drawn by De Korte on Eckstein & Co, knowing that the company did not owe him any money and that the company did not have the funds to honour the second bill of exchange; the third ground concerned a payment made by Eckstein & Co to De Korte with the implication that this was done as an appreciation of De Korte's granting of an application by Eckstein & Co. See TAB SS Vol 5425 R6146/96 153. 149 Kotzé was the chairman of the special court. See TAB SS Vol 5425 R6146/96 116. 150 The details and complications of the allegations are explained in Van der Merwe 1979 De Jure 242-251. 151 Anonymous "Editorial" 1896 Cape LJ 241.152 Decision of the Executive Council dated 1866-08-29 and the letter to J Vos publ in Breytenbach SA ArgiefstukkeAnnex 85 at 228. It is interesting that the letter dismissing Vos from his position was dated more than a month (1866-07-23) before the Council's decision. See also TAB SS Vol 78 R728/66 260-262 for a list of the mentioned farms. 153 Undated letter from J Vos. I was not able to find this document, but it is referred to in Breytenbach SA Argiefstukkexvii (w) as one of the documents that came under consideration by the Volksraadduring 1866. Of interest is a letter from the office of the Attorney-General to the State President dated 1867-04-25, stating that there were not sufficient grounds for prosecution ("geene genoegzame gronden bestaan") (TAB SS Vol 78 R730/66 278). 154 Although rumours to that effect circulated as early as 1887 (Anonymous 1887 Cape LJ120). An Incorporated Law Society for the Cape had already been established a few years earlier in terms of Act 27 of 1883 (Cape). In 1878 LP Ford, on behalf of the practicing members of the Bar of the High Court of the ZAR, wrote a letter to the Secretary to Government stating that it was their intention to establish themselves into a society such as the one in Natal (TAB SS Vol 260 R50/78 156). However, it is unclear whether this "society" was intended for advocates only, or for dual practitioners, since Natal followed the dual system of practice at that time (Wildenboer 2010 2 Fundamina 217-218). Although the ZAR followed the practice of a divided legal profession since 1877, practitioners who had been admitted before that date could still practice in dual capacity (see par 2 2 supra).155 In terms of GN 371 of 1892-10-13 (Staatscourant of 1892-10-19) (publ in Van Niekerk Die Prokureursorde van Transvaal Eeufees(1992) 4-6). Van Niekerk dates the establishment of the Orde to 1892-10-19 (Van Niekerk 3). This original body was replaced by the Incorporated Law Society of the Transvaal in terms of s 1 of Proc 18 of 1902. However, three years earlier, the High Court Rules 1899 (see n 62 supra) already made use of the translated term, namely the "Incorporated Law Society" (ss 103(a), (b) and s 106 High Court 156 Art 2 Reglement of the Orde (publ in Van Niekerk 4-6) stated that all the admitted attorneys and notaries in the ZAR were ipso jure members of the Orde.157 TAB ZTPD Vol 8/601 Ref 10612/1899 237 ff.158 See Frost's letter to Edw. Mawby Esq. dated 1894-07-19: idem at 254. 159 His three reasons were first, that law agents, who could only appear in the lower courts, were allowed to brief counsel regarding both civil and criminal matters in the high court; second, that certain attorneys in Pretoria afforded some "facilities" and "allowance for work" to law agents; and third, that some law agents had attorneys in their employ and performed high court work in the names of those attorneys (idemat 254-255). 160Idem at 255. 161 A few respondents were granted extension to oppose the application: see the handwritten judgement issued on 1898-12-12 (idemat 237). 162 Van Niekerk 6. On 1894-09-20 the board of examiners accepted a secrecy policy, to which the only outsider privy to this knowledge, was the secretary of the Orde (ibid. This further illustrates the involvement of the Orde with matters previously handled by the board of examiners alone. 163 See also ss 25 & 26 Reglement(n 156 supra).164 TAB ZTPD Vol 8/384 Ref 6560/1893 347ff.165 See the affidavit of Edward Rooth dated 1893-08-14 (idemat 351-352). 166 On 1893-11-06. 167 See nn 3, 4, 5 supra.168 See nn 6, 7 supra.169 At a later stage, Haggard did read for law at Lincoln's Inn upon his return to England in 1881. However, at the time of his appointment as master and registrar of the high court of the ZAR, he did not have any legal training. For more on Haggard's life and career, see Goedhals sv "Haggard, Sir Henry Rider" in DSABVol I (1968) 340-341. 170 TAB SS Vol 341 R1777 218-221. In accepting the resignation, the Colonial 171 Kotzé was baptised as Johannes Gysbert Kotzé, but chose to make use of the anglicised version, namely John Gilbert, throughout his life. See Hiemstra sv "Kotzé, Johannes Gysbert" in DSABVol I (1968) 458. 172 He completed the matriculation examination of the University of London, and in 1872 received the LLB degree, also from the University of London. He was called to the Bar of the Inner Temple in London on 1874-04-30 and was admitted as an advocate of the Cape Bar on 1874-08-18. See Hiemstra 458; Kotzé Vol 1 109, 112, 136, 156, 170. 173 At both the Cape Bar and that of the Eastern Districts Court (Hiemstra sv "Kotzé, Johannes Gysbert" in DSABVol I (1968) 458; Kotzé Vol 1 166-209). 174 Kotzé Vol 1 425, 702; Hiemstra sv"Kotzé, Johannes Gysbert" in DSABVol I (1968) 458-460. See also n 39 supra.175 He wrote: "Those who knew Haggard recognized in him a man of honour and truth. But his was an extraordinary mind. He was emotional and much given to romancing. His imagination impelled him into a world of fancy which for the time had complete hold of his sense, and hence he described as fact what was mere fiction" (Kotzé Vol 1 488 n 1). 176 Hahlo & Kahn 234 agrees that the stricter regulation of the profession as well as the judiciary after 1877 improved the standards of "pleading and adjudication". 177 This dilemma was not limited to the ZAR only: for a criticism of this dilemma, see Pont 1961 Acta Juridica 65-66. Judicial duties were not the only responsibilities of landdrostsin the ZAR: these also included farm inspections, administration of schools, postal and traffic matters, as well as the collection of taxes. In fact, the first landdrostof Pretoria resigned after less than three years after being appointed, not only because of frustration with the lack of support from the government, but also because of health reasons. (For a description of the duties and hardships of the first landdrost of Pretoria, see Breytenbach "Andries Francois du Toit: sy aandeel in die Transvaalse geskiedenis" 1942 2 Argief-Jaarboek vir Suid-Afrikaanse Geskiedenis 22.) This matter was considered serious enough to merit legislation relieving at least the landdrostof Pretoria of the duty of collecting taxes and other related duties (Law 9 of 1881). 178 Kotzé Vol 1 440; see also Kahn 1958 SALJ309. This was partially a result of the lack of required legal training for landdrosts and heemraden in, for example, the 1858 Constitution (see n 20 supra). Hahlo & Kahn 235 notes that even after 1881, the bench, with a few exceptions, was "undistinguished" and appointments were made not necessarily as much on the grounds of career excellence, than on nepotism and favoritism. In addition, most judges were appointed at a relatively young age (see also Van der Westhuizen & Van der Merwe 1977 De Jure246 n 59) and they did not remain on the bench for long, but left for other official posts or the lure of private practice. 179 Kotzé Vol 1 440. The incompetence and impartiality of landdrostsseems to have been an issue even as late as 1882 (see De Volksstem (1882-05-24); see also Van der Westhuizen & Van der Merwe 1977 De Jure100). 180 Kahn 1958 SALJ310 also ascribes the weak position of the bench at that time to lack of a statute book and law reports; see also Van der Westhuizen & Van der Merwe 1977 De Jure99. 181Ibid. Kotzé described an amusing incident in which a clerk of the court, presiding in the absence of the landdrost, after hearing arguments from counsel, dismissed them with the words "Ik versta er geen bliksem van" ("I do not understand a damn thing" (my translation)). When pressed about an order as to costs, he responded that they had to decide that amongst themselves, but that he definitely was not going to pay it (Kotzé Vol 1 441). 182 See eg I4 13 11(10) which referred to infamous procurators; Anonymous "The brotherhood of the Bar" 1890 Cape LJ148 who referred to the "black sheep" of the English Bar: "men whose sole aim and object in life is to secure advancement by any pitiful device within their reach." 183 See also Wildenboer 2010 2 Fundamina224.